Exhibit 10.32


 


AFFYMETRIX, INC.
 A Delaware
corporation


 


Change of Control Plan 


 (As Amended Through May 16,
2008)


 


This Change of Control Plan (the “Plan”)
sets forth (i) the terms applicable to equity awards of Affymetrix, Inc.
(together with any successor to substantially all of its business, stock or
assets, the “Company”) in the
event of a transaction resulting in a Change of Control (as defined below) and (ii) the
receipt of severance benefits for Covered Persons of the Company in the event
of a transaction resulting in a Change of Control.


 


1.            Treatment of Equity
Awards.  Upon the occurrence of a
Change of Control, or the execution by the Company of any agreement with
respect to a Change of Control, the Board shall take any one or more of the
following actions with respect to outstanding compensatory stock options,
restricted stock, restricted stock units or other equity awards (collectively, “Equity Awards”) held by any Covered Person at such time:


 


(a)           provide that outstanding Equity Awards shall
be continued by the Company if the Company is the surviving entity or shall be
assumed, or equivalent Equity Awards shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof);


 


(b)           upon written notice to the holders of Equity
Awards, provide that all Equity Awards will become vested and, if applicable,
exercisable in full as of a specified time (the “Acceleration Time”) prior to the Change of Control and will
terminate immediately prior to the consummation of such Change of Control;


 


(c)           in the event of a transaction resulting in a
Change of Control, under the terms of which holders of Common Stock, par value
$0.01 per share, of the Company (the “Common
Stock”) will receive upon consummation thereof a cash payment for
each share of Common Stock surrendered pursuant to such Change of Control (the “Acquisition Price”), provide that all
outstanding Equity Awards shall terminate upon consummation of such Change of
Control and each holder of such Equity Awards shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by which the Acquisition
Price multiplied by the number of shares of Common Stock subject to such
outstanding Equity Awards (whether or not then vested), exceeds the aggregate
exercise price or purchase price, if any, of such Equity Awards.


 


2.            Treatment of Equity
Awards Upon Triggering Event.  With
respect to any Equity Awards remaining outstanding following a Change of
Control, upon a Triggering Event, a Covered Person’s Equity Awards shall become
fully vested subject to compliance with Section 3 below.  Notwithstanding the foregoing, to the extent
that any applicable laws or regulations of the applicable jurisdiction in which
the Covered Person is employed requires certain treatment with respect to Equity
Awards upon a Triggering Event, the Covered Person shall be entitled to the
more 


 

















 


beneficial treatment provided by either (i) the
applicable laws or regulations of the applicable jurisdiction or (ii) this
Plan, but not both.  To the extent any Equity
Awards are to be settled in cash pursuant to Section 1 or this Section 2,
such Equity Awards shall be settled as promptly as practicable but no later
than two and one-half months (2-1/2) months after the end of the taxable year
of the Covered Person in which such Equity Awards become vested.


 


3.            Enhanced Severance.  (a) Upon a Triggering Event following a
Change of Control, the following Covered Persons shall receive a severance
payment equal to the following amount of their base salary:


 


	
  COVERED PERSON POSITION

  	
   

  	
  SEVERANCE PERIOD

  	
   

  
	
  EVP, CEO, President

  	
   

  	
  24 months

  	
   

  
	
  Senior VP

  	
   

  	
  15 months

  	
   

  
	
  VP

  	
   

  	
  12 months

  	
   

  
	
  Director

  	
   

  	
  9 months

  	
   

  
	
  Level 5 or Above

  	
   

  	
  6 months

  	
   

  
	
  Level 4 or Below

  	
   

  	
  3 months

  	
   

  



 


(b)           All severance benefits under this Plan shall
be conditioned on the Covered Person signing and letting become effective a
general release of claims (the “Release”) in a
form acceptable to the Company. The Covered Person shall sign such Release
within 45 days following termination. 
All severance payments under this Plan shall be made in a lump-sum
within 10 days after the later of the termination date and the date on which
the Release becomes effective, and, in any event, no later than two and
one-half (2-1/2) months after the end of the taxable year of the Covered Person
in which the termination date occurs. 
All amounts paid under this Plan shall be reduced by any applicable
taxes or any other amounts required to be paid or withheld by the Company.


 


(c)           In the event of termination of a Covered
Person with a housing loan, such Covered Person will have one year to settle
the loan with the Company.  During such
year, the Covered Person will continue to make interest payments to the
Company.


 


(d)           The Company will continue to provide health
benefits (which may be through COBRA premium reimbursement or subsidizing) to
each Covered Person at the same cost to such Covered Person as prior to the
Change of Control for the period of time set forth in Section 3(a) under
“Severance Period” or, if earlier, until such Covered Person becomes eligible
for group health benefits from another employer.


 


(e)           The Company will provide each Covered Person
outplacement services following termination of employment for a period of six
months for Executive Officers, Vice Presidents and Directors and two months for
all other Covered Persons.


 


(f)            Notwithstanding the foregoing, to the
extent that any applicable laws or regulations of the applicable jurisdiction
in which the Covered Person is employed requires 


 

















 


certain treatment with respect to Enhanced
Severance provisions set forth in this Section 3, the Covered Person shall
be entitled to the more beneficial treatment provided by either (i) the
applicable laws or regulations of the applicable jurisdiction or (ii) this
Plan, but not both.


 


4.            Definitions.  For purposes of this Plan, the following
terms shall have the following meanings:


 


(a)           “Cause”
shall mean any of the following by a Covered Person:


 


(i)             willful and continued failure to
substantially perform his or her duties to the Company (other than as a result
of total or partial incapacity due to physical or mental illness);


 


(ii)            any willful act or omission constituting
dishonesty, fraud or other malfeasance against the Company;


 


(iii)           conviction of a felony under the laws of the
United States or any state thereof or any other jurisdiction in which the
Company conducts business; or


 


(iv)           breach of any of the material policies of
the Company including being under the influence of illicit drugs or alcohol at
work or on the Company’s premises.


 


(b)           “Change of
Control” shall mean:


 


(i)            any merger or consolidation which results
in the voting securities of the Company outstanding immediately prior thereto
representing immediately thereafter (either by remaining outstanding or by
being converted into voting securities of the surviving or acquiring entity) no
more than 50% of the combined voting power of the voting securities of the
Company or such surviving or acquiring entity outstanding immediately after
such merger or consolidation;


 


(ii)           during any period of 12 consecutive calendar
months, the individuals who at the beginning of such period constitute the
Company’s Board of Directors (the “Board”),
and any new directors whose election by such Board or nomination for election
by stockholders was approved or recommended by a vote of at least a majority of
the members of such Board who were either directors on such Board at the
beginning of the period or whose election or nomination for election as
directors was previously so approved or recommended, for any reason cease to
constitute at least a majority of the members thereof;


 


(iii)          any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 as amended (“Exchange
Act”))(a “Person”)
shall become the beneficial owner (within the 


 

















 


meaning of Rule 13d-3 promulgated under
the Exchange Act) of at least 50% of the total voting power represented by the
Company’s then outstanding voting securities; or


 


(iv)          any sale of all or substantially all of the
assets of the Company.


 


(c)           “Covered
Person” or “Covered Persons”
shall mean a full-time employee of the Company or any of its wholly-owned
subsidiaries or a member of the Board of Directors of the Company who, as
applicable, is either employed by the Company or serving as a director
immediately prior to a Change of Control.


 


(d)           “Triggering
Event” shall mean:


 


(i)             a Covered Person’s employment is
terminated by the Company (or any successor or acquiror) without Cause in
connection with, or within twelve (12) months following, a Change of Control; provided, however, if an employee is
terminated by the Company in connection with a Change of Control but
immediately accepts employment with the Company’s successor or acquiror, such
employee will not be deemed to be covered by this subsection (i), but if such
employee is terminated without Cause by the successor or acquiror within the
twelve (12) months following the Change of Control, this subsection (i) will
apply;


 


(ii)            the Covered Person, in connection with a
Change of Control, is not offered Comparable Employment.  For purposes of the foregoing, “Comparable Employment” shall mean, (a) in
the case of a Covered Person at the director level or above, (i) employment
on terms which provide the same or greater rate of base pay or salary as in
effect immediately prior to a Change of Control, (ii) no material
reduction in job duties and responsibilities as such Covered Person had prior
to a Change of Control and (iii)  equivalent or higher target bonus
opportunity to the target bonus opportunity of the Covered Person in effect
immediately prior to the Change of Control, and (b) in the case of all
Covered Persons, a principal work location that is no more than forty-five (45)
miles from the Covered Person’s principal work location immediately prior to
the Change of Control; provided, however,
if such Covered Person accepts employment that is not Comparable Employment,
such employee shall not be covered by this subsection (ii);


 


(iii)           after accepting employment with the Company
(or any successor or acquiror) after a Change of Control, the Covered Person
resigns employment within six (6) months following a Change of Control due
to a Material Change in the Covered Person’s Terms of Employment.  For purposes of the foregoing, a “Material Change in the Covered Person’s Terms of
Employment” shall occur if, without the Covered Person’s written
consent: (a) in the case of a Covered Person at the director level or
above, (i) the Covered Person’s base salary or job duties and responsibilities
are materially reduced from those in effect immediately prior to a Change of
Control or (ii) the Covered Person is subject to a substantial reduction
in target bonus opportunity from the target bonus opportunity 


 

















 


of that Covered Person in effect immediately
prior to the Change of Control, or (b) in the case of a Covered Person at
Level 6 or above, such Covered Person’s principal work location is to be moved
more than forty-five (45) miles from the Covered Person’s principal work
location immediately prior to a Change of Control; or


 


(iv)           with respect to a Covered Person who is a
member of the Board immediately prior to a Change of Control, such member of
the Board is asked to resign or not stand for reelection without Cause in
connection with or within 12 months following a Change of Control.


 


5.            Section 409A. 
Notwithstanding anything to the contrary in this Plan, if a Covered
Person is a “specified employee” within the meaning of Section 409A of the
Internal Revenue Code, as amended (“Section 409A”)
and the regulations thereunder, as determined under the Company’s established
methodology for determining specified employees, as of the date of such Covered
Person’s “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (or
any successor regulation), and if any payments or entitlements provided for in
this Plan constitute a “deferral of compensation” within the meaning of Section 409A
and cannot be paid or provided in the manner provided herein without subjecting
such Covered Person to additional tax, interest or penalties under Section 409A,
then any such payment and/or entitlement which is payable during the first six
months following such Covered Person’s “separation from service” shall be paid
or provided to such Covered Person in a lump sum on the first business day
immediately following the first to occur of (i) the six-month anniversary
of such Covered Person’s “separation from service” and (ii) the date of
such Covered Person’s death.


 


6.            Amendment of Plan.  The Board shall have the power to amend this
Plan from time to time in its discretion prior to the occurrence of a Change of
Control.  Following a Change of Control,
this Plan may not be terminated or amended in a manner adversely to any Covered
Person for 12 months following a Change of Control.  The termination or amendment of the Plan at
any time shall not affect any benefits to which a Covered Person has previously
become entitled hereunder.


 


7.            Mediation and Arbitration.  The parties agree that any and all disputes,
claims or controversies arising out of or relating to this Plan shall be
submitted to Judicial Arbitration and Mediation Services (“JAMS”), or its successor, to the extent
possible in the location which is the location of a Covered Person’s principal
work place, under the auspices and rules of JAMS, for mediation, and if
the matter is not resolved through mediation, then it shall be submitted to
JAMS, or its successor, for final and binding arbitration.  The provisions of this Section may be
enforced by any court of competent jurisdiction, and the party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys’ fees, to be paid by the party against whom enforcement is
ordered.


 


8.             Superseding Plan.  This Plan (i) shall be the only plan
with respect to benefits provided to Covered Persons of the Company upon a
transaction that results in a Change of Control and (ii) shall supersede
any other plan with respect to a transaction resulting in a Change of Control
previously adopted by the Company.